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CASE NO.: Appeal (civil)  4761 of 2006

PETITIONER: Ashok Kumar Sonkar

RESPONDENT: Union of India & Others

DATE OF JUDGMENT: 23/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B.SINHA, J :  

       Banaras Hindu University (for short, ’the University) issued an  advertisement on 25.03.1995,  iner alia, for filling up a vacant post of  lecturer in Tridosa Vigyan in the Department of Basic Principles. Relevant  clauses of the said advertisement are  as under :

       "Those who have applied  earlier are required to  apply again on the prescribed format for the post,  otherwise their candidature will not be considered.  They  will, however, be exempted from any payment against  the application. Their cases will be considered according  to the up-dated qualification."

Essential qualifications prescribed for the said post are  :

"70.  Lecturer in Tridosa Vigyan (One)  [Department of Basic  Principles]

Qualifications :

Essential       1.      ABMS or equivalent examination                                   from any recognized institution.

2.              M.D. in Sharir-Kriya

Desirable       1.      Standard publication in the filed of                                     Neurophysiology, Neurochemistry,                                         related to Tridosa Vigyan.

2.              Knowledge of Modern Medical          Science and Sanskrit."

       Appellant applied for the said post on 30.05.1995.  As on that day, he  had not completed his M.D. in Sharir Kriya, with his application he enclosed  a certificate issued by Professor and Head of the Department of Basic  Principles, Institute of Medical Sciences, Banaras Hindu University,  which  reads as under :                  "This is to certify that Dr. Ashok Kumar Sonkar  son of Dr. K.P. Sonkar, is a bona fide student of the  Department of Basic Principles.  He was admitted for the  Degree of M.D. (Ay.) Basic Principles (Sharir-Kriya) on  1st August, 1992 and his final examination will be held in

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October, 1995.  His thesis entitled "Clinical evaluation of  therapeutic potential of certain indigenous drugs in  seizure disorders" will be submitted in the month of June,  1995.

       He is sincere, hard working young man, zealous  and outwitted scholar and sound character of this  department.  He is fit to be entrusted for clinical,  research, teaching and administrative responsibilities.

       I wish him all success in future life."

       He passed the said examination only on 30.10.1995.  He was allowed  to appear before the Selection Committee, despite the fact that he did not  hold the requisite qualification till the date of filing of such application.  He,  however, was selected and offered an appointment.  He joined the said post.   

       In the meanwhile, Respondent No. 4 filed a writ petition before the  Allahabad High Court, which was marked as Writ Petition No. 20883 of  1997.  The High Court by reason of an order dated 17.02.1998  dismissed  the said writ petition on the premise that he had an alternative remedy.   Respondent No.4 thereafter moved the President of India in his capacity of  the ’Visitor’ of the said University.  The ’Visitor’ was of the opinion that the  selection process was illegal.  The selection proceeding, therefore, was set  aside. However, before the said order was passed, the comments of the  University were called for. The University offered its comments.  The order  of the Visitor was communicated by the Desk Officer, Ministry of Human  Resource Development (Department of Secondary Education and Higher  Education), Government of India, by a letter dated 18.10.2000, intimating  the Registrar of  the University that the President of India in his capacity as  the Visitor of the University had annulled the appointment of the appellant  in exercise of the power conferred upon him under Section 5(7) of the  Banaras Hindu University Act, 1915 (for short, ’the Act’), the relevant  portion of the said letter is as under :

       "Kindly refer to your letter No.AA/VI-SC/1460  dated the 15 July, 2000 forwarding therewith 1460 a  reply of the University to the show cause Notice issued in  exercise of the powers conferred upon the President of  India in his capacity as the Visitor of the University  under Section 5(7) of the Banaras Hindu University Act,  1915. The Visitor, after considering the reply of the  University, pleased to annul the appointment of Dr.  Ashok Kumar Sonkar as Lecturer in Tridosh Vigyan  IMS,  Banaras Hindu University with immediate effect.

       This issue on the basis of communication received  from President’s secretariat vide their No. 28(2)(xiii) 98- CA (II), dated 21.03.2000.  The University may take  further necessary action immediately after intimation to  this Department."

       A writ petition was filed by the appellant before the Allahabad High  Court.  By reason of the impugned judgment dated 26.05.2006, the said writ  petition has been dismissed.

       Mr. V. Shekhar, the learned counsel appearing on behalf of the  appellant, in support of this appeal, would submit :          1)      In absence of any cut-off date having been specified in the          advertisement and in view of the fact that the statute or statutory rules          in this behalf are also silent in regard to the question as to whether the          Selection Committee could allow the appellant to take part in the          selection process as he had completed his M.D. before he was

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       considered therefor, the High Court committed a manifest error in          arriving at the finding. 2)      In view of the fact that the appellant was  confirmed in the post of          lecturer, it was obligatory on the part of the Visitor to give an          opportunity of hearing to the appellant. 3)      The University having taken a definite stand before the High Court in          the earlier writ petition that the appellant was selected in terms of the          prevailing practice, the impugned judgment is unsustainable. 4)      The jurisdiction of the Visitor being limited under sub-section (2) of          Section 5 of the Act, new appointment could not have formed subject-         matter of his decision. 5)      Respondent No. 4 being himself ineligible, he did not have any locus          standi to maintain the writ petition or make a representation before the          Visitor of the University.   6)      In any event, keeping in view the facts and circumstances of the case,          it was obligatory on the part of the High Court in equity to refuse to          exercise its discretionary jurisdiction.

       Mr. G.E. Vahanvati, the learned Solicitor General and Dr. Rajeev  Dhawan, the learned Senior Counsel, appearing on behalf of the  respondents, however, supported the impugned judgment.

       Section 5 of the Act provides that the President of India shall be the  Visitor of the University.  Sub-section (7) of Section 5 of the Act, however,  confers power upon the Visitor of the University,  without prejudice to the  other provisions contained in the said Section, by order in writing,  to annul  any proceeding of the University which is not in conformity with the said  Act, the Statutes or the Ordinances.  Proviso appended thereto, however,  mandates the Visitor to call upon the University to show cause why such an  order should not be made and if any cause is shown within a reasonable time  shall consider the same, before making any such order.

       Indisputably, the recruitment of the academic staff of the University is  governed by the provisions of the said Act and the Statutes and Ordinances  framed thereunder.

       The question as to what should be the cut-off date in absence of any  date specified in this behalf either in the advertisement or in the reference is  no longer res integra.  It would be last date for filing application as would  appear from the discussions made hereinafter.  

       The question came up for consideration, inter alia, before a 3-Judge  Bench of this Court in Ashok Kumar Sharma and Another etc. v. Chander  Shekher and Another etc. [(1993) Supp. (2) SCC 611], wherein Thommen, J.  speaking for himself and Ramaswami, J. opined :

"13. It is true Rule 37 is in terms applicable only to  Public Service Commission candidates and due notice of  provisional entertainment of their application, subject to  their passing examination before the date of interview, is  a requirement peculiar to Rule 37 and is not applicable to  the present case. 14. If the principle of Rule 37 is by analogy applicable,  the fact that notice of provisional entertainment of  applications, subject to passing of the examination before  the date of interview, is a requirement in the interests of  candidates who fell within that category. The appellants  are by analogy persons of that category, but they have no  complaint on any such ground. 15. The fact is that the appellants did pass the  examination and were fully qualified for being selected  prior to the date of interview. By allowing the appellants  to sit for the interview and by their selection on the basis  of their comparative merits, the recruiting authority was  able to get the best talents available. It was certainly in

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the public interest that the interview was made as broad  based as was possible on the basis of qualification. The  reasoning of the learned Single Judge was thus based on  sound principle with reference to comparatively superior  merits. It was in the public interest that better candidates  who were fully qualified on the dates of selection were  not rejected, notwithstanding that the results of the  examination in which they had appeared had been  delayed for no fault of theirs. The appellants were fully  qualified on the dates of the interview and taking into  account the generally followed principle of Rule 37 in the  State of Jammu & Kashmir, we are of opinion that the  technical view adopted by the learned Judges of the  Division Bench was incorrect and the view expressed by  the learned Single Judge was, on the facts of this case,  the correct view. Accordingly, we set aside the impugned  judgment of the Division Bench and restore that of the  learned Single Judge. In the result, we uphold the results  announced by the recruiting authority. The appeal is  allowed in the above terms. However, we make no order  as to costs."

       Sahai, J., however, gave a  dissenting note, stating :   

"\005The notification, therefore, provided not, only, the  conditions which a candidate was required to possess  when applying for the post mentioned in the notification  but he was also required to support it with authenticated  certificate and if he failed to do so then the application  was not liable to be entertained. In legal terminology  where something is required to be done and the  consequences of failure to do so are also provided then it  is known as mandatory. The mandatory character of  possessing the requirements as provided in the first part  of the notification stands further strengthened from the  third and last part of the notification which prohibited the  candidates from applying if they did not possess the  requisite qualifications. In view of these clear and  specific conditions laid down in the advertisement those  candidates who were not possessed of the B.E.  qualifications were not eligible for applying nor their  applications were liable to be entertained nor could they  be called for interview. Eligibility for the post mentioned  in the notification depended on possessing the  qualification noted against each post. The expression,  shall be possessed of such qualifications, is indicative of  both the mandatory character of the requirement and its  operation in praesenti. That is a candidate must not only  have been qualified but he should have been possessed of  it on the date the application was made. The construction  suggested by the learned counsel for the appellant that  the relevant date for purposes of eligibility was the date  of interview and not the date of application or July 15,  1982 the last date for submission of forms is not made  out from the language of the notification. Acceptance of  such construction would result in altering the first part of  the advertisement prescribing eligibility on the date of  applying for the post as being extended to the date of  interview. If it is read in the manner suggested then the  requirement that incomplete applications and those not  accompanied by the requisite certificates shall not be  entertained, shall become meaningless. Purpose of filing  certificate along with application was to prove that the  conditions required were satisfied. Non-filing of any of  the certificates could have resulted in not entertaining the

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application as the requirements as specified would have  been presumed to be non-existent. Fulfilment of  conditions was mandatory and its proof could be  directory. The former could not be waived or deferred  whereas the defect in latter could be cured even  subsequently. That is proof could be furnished till date of  interview but not the eligibility to apply for the post. Any  other construction would further be contrary to the last  part of the notification."

       A review application was filed which was admitted.  The matter was  again placed before a 3-Judge Bench of this Court in Ashok Kumar Sharma  and Others v. Chander Shekhar and Another [(1997) 4 SCC 18].  One of the  issues which fell for consideration of the Bench being Issue No. 1 reads as  under :         "(1) Whether the view taken by the majority  (Honble Dr Thommen and V. Ramaswami, JJ.) that it is  enough for a candidate to be qualified by the date of  interview even if he was not qualified by the last date  prescribed for receiving the applications, is correct in law  and whether the majority was right in extending the  principle of Rule 37 of the Public Service Commission  Rules to the present case by analogy?"           It was held : "\005So far as the first issue referred to in our Order dated  1-9-1995 is concerned, we are of the respectful opinion  that majority judgment (rendered by Dr T.K. Thommen  and V. Ramaswami, JJ.) is unsustainable in law. The  proposition that where applications are called for  prescribing a particular date as the last date for filing the  applications, the eligibility of the candidates shall have to  be judged with reference to that date and that date alone,  is a well-established one. A person who acquires the  prescribed qualification subsequent to such prescribed  date cannot be considered at all. An advertisement or  notification issued/published calling for applications  constitutes a representation to the public and the  authority issuing it is bound by such representation. It  cannot act contrary to it. One reason behind this  proposition is that if it were known that persons who  obtained the qualifications after the prescribed date but  before the date of interview would be allowed to appear  for the interview, other similarly placed persons could  also have applied. Just because some of the persons had  applied notwithstanding that they had not acquired the  prescribed qualifications by the prescribed date, they  could not have been treated on a preferential basis. Their  applications ought to have been rejected at the inception  itself. This proposition is indisputable and in fact was not  doubted or disputed in the majority judgment. This is  also the proposition affirmed in Rekha Chaturvedi v.  University of Rajasthan. The reasoning in the majority  opinion that by allowing the 33 respondents to appear for  the interview, the recruiting authority was able to get the  best talent available and that such course was in  furtherance of public interest is, with respect, an  impermissible justification. It is, in our considered  opinion, a clear error of law and an error apparent on the  face of the record. In our opinion, R.M. Sahai, J. (and the  Division Bench of the High Court) was right in holding  that the 33 respondents could not have been allowed to  appear for the interview.

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       The said decision is, therefore,  an authority for the proposition that in  absence of any cut-off date specified in the advertisement or in the rules, the  last date for filing of an application shall be considered as such.   

       Indisputably, the appellant herein did not hold the requisite  qualification as on the said cut-off date.  He was, therefore, not eligible  therefor.  

In Bhupinderpal Singh & Others v. State of Punjab & Others  [(2000)  5 SCC 262], this Court moreover  disapproved the prevailing practice in the  State of Punjab to determine the eligibility with reference to the date of  interview, inter alia, stating : "13. Placing reliance on the decisions of this Court in  Ashok Kumar Sharma v. Chander Shekhar, A.P. Public  Service Commission v. B. Sarat Chandra, District  Collector and Chairman, Vizianagaram Social Welfare  Residential School Society v. M. Tripura Sundari Devi,  Rekha Chaturvedi v. University of Rajasthan, M.V. Nair  (Dr) v. Union of India and U.P. Public Service  Commission U.P., Allahabad v. Alpana the High Court  has held (i) that the cut-off date by reference to which the  eligibility requirement must be satisfied by the candidate  seeking a public employment is the date appointed by the  relevant service rules and if there be no cut-off date  appointed by the rules then such date as may be  appointed for the purpose in the advertisement calling for  applications; (ii) that if there be no such date appointed  then the eligibility criteria shall be applied by reference  to the last date appointed by which the applications have  to be received by the competent authority. The view  taken by the High Court is supported by several decisions  of this Court and is therefore well settled and hence  cannot be found fault with. However, there are certain  special features of this case which need to be taken care  of and justice be done by invoking the jurisdiction under  Article 142 of the Constitution vested in this Court so as  to advance the cause of justice."

[See    Jasbir Rani and Others v. State of Punjab & Another [JT 2001 (9) SC  351 : (2002) 1 SCC 124].

       Yet again in Shankar K. Mandal and Others v. State of Bihar and  Others [(2003) 9 SCC 519], this Court held that the following principles  could be culled out from the aforementioned decisions : " (1) The cut-off date by reference to which the eligibility  requirement must be satisfied by the candidate seeking a  public employment is the date appointed by the relevant  service rules. (2) If there is no cut-off date appointed by the rules then  such date shall be as appointed for the purpose in the  advertisement calling for applications. (3) If there is no such date appointed then the eligibility  criteria shall be applied by reference to the last date  appointed by which the applications were to be received by  the competent authority."

       In M.A. Murthy v. State of Karnataka & Others [(2003) 7 SCC 517], a  contention was made that Ashok Kumar-II (supra) was to operative  prospectively or not.  The said contention was rejected, stating : "\005It is for this Court to indicate as to whether the decision  in question will operate prospectively. In other words,  there shall be no prospective overruling, unless it is so  indicated in the particular decision. It is not open to be held  that the decision in a particular case will be prospective in  its application by application of the doctrine of prospective

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overruling. The doctrine of binding precedent helps in  promoting certainty and consistency in judicial decisions  and enables an organic development of the law besides  providing assurance to the individual as to the  consequences of transactions forming part of the daily  affairs. That being the position, the High Court was in  error by holding that the judgment which operated on the  date of selection was operative and not the review  judgment in Ashok Kumar Sharma case No. II. All the  more so when the subsequent judgment is by way of  review of the first judgment in which case there are no  judgments at all and the subsequent judgment rendered on  review petitions is the one and only judgment rendered,  effectively and for all purposes, the earlier decision having  been erased by countenancing the review applications. The  impugned judgments of the High Court are, therefore, set  aside."

       Possession of  requisite educational qualification is mandatory. The  same should not be uncertain.  If an uncertainty is allowed to prevail, the  employer would be flooded with applications of ineligible candidates.  A  cut-off date for the purpose of determining the eligibility of the candidates  concerned must, therefore, be fixed.  In absence of any rule or any specific  date having been fixed in the advertisement, the law, therefore, as held by  this Court would be the last date for filing the application.

       Recently, this Court in Kendriya Vidyalaya Sangathan and Others v.  Sajal Kumar Roy and Others [(2006) 8 SCC 671], opined that the conditions  laid down for exercising the power of relaxation must be scrupulously  followed, stating :

"\005The appointing authorities are required to apply their  mind while exercising their discretionary jurisdiction to  relax the age limits. Discretion of the authorities is  required to be exercised only for deserving candidates  and upon recommendations of the Appointing  Committee/Selection Committee. The requirements to  comply with the rules, it is trite, were required to be  complied with fairly and reasonably. They were bound  by the rules. The discretionary jurisdiction could be  exercised for relaxation of age provided for in the rules  and within the four corners thereof. ..."

       Therein, this Court noticed the decision in Food Corporation of India  and Ors. v. Bhanu Lodh and Ors.  [(2005) 3 SCC 618], wherein, inter alia, it  was held : "\005The power of relaxation is intended to be used in  marginal cases where exceptionally qualified candidates  are available. We do not think that they are intended as  an "open sesame" for all and sundry. The wholesale go- by given to the Regulations, and the manner in which the  recruitment process was being done, was very much  reviewable as a policy directive, in exercise of the power  of the Central Government under Section 6(2) of the  Act\005"  

       We, therefore, see no infirmity in the judgment of the High Court, in  this behalf.   

       The power of the Visitor is not only confined under sub-section (2) of  Section 5, but also under sub-section (7) of Section 5 of the Act.  Even  otherwise sub-section (2) of Section 5 cannot be construed narrowly.  The  power of the Visitor to cause an inquiry to be made is in respect of  any  matter connected with the University.  Sub-section (7) of Section 5 provides

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for a power in the Visitor without prejudice to the provision contained in  sub-sections (2) to (6) of Section 5 of the Act.  An express power, thus, has  been conferred upon the Visitor to annul any proceeding of the University.   The only condition attached thereto is that the same should  found to be not  in conformity with the statutes or ordinances.  The selection process carried  out by the Selection Committee would indisputably be a proceeding under  the Act.  Section 17 provides for a statute making power, including clause  (l), which reads as under :

"(l)    the classification and the manner of appointment  of teachers in the University and the colleges;"

       Submission of Mr. Shekhar that the Visitor committed an error in  passing the impugned judgment as ’any irregularity in the procedure by any  authority shall not render the same invalid, unless the same affects the merits  of the case’  is stated to be rejected. Appointment of a teacher must conform  to the constitutional scheme as adumbrated under Articles 14 and 16 of the  Constitution of India and the terms of the Act or the statute or ordinances  governing the field.  Any violation of the provisions thereof would entitle  the Visitor to exercise his jurisdiction under sub-section (7) of Section 6.  It  is also beyond any cavil that in exercising the said power, the statutory  provisions interpreted by this Court must be followed.   

       This bring us to the question as to whether the principles of natural  justice were required to be complied with.  There cannot be any doubt  whatsoever that the audi alteram partem is one of the basic pillar of natural  justice which means no one should be condemned unheard.  However,  whenever possible the principle of natural justice should be followed.  Ordinarily in a case of this nature the same should be complied with.  Visitor  may in a given situation issue notice to the employee who would be effected  by the ultimate order that may be passed.  He may not be given an oral  hearing, but may be allowed to make a representation in writing.  

       It is also, however,  well-settled that it cannot be put any straight  jacket formula.  It may not be in a given case applied unless a prejudice is  shown.   It is not necessary where it would be a futile exercise.  

       A court of law does not insist on compliance of useless formality.  It  will not issue any such direction where the result would remain the same, in  view of the fact situation prevailing or in terms of the legal consequences.   Furthermore in this case, the selection of the appellant was illegal.  He was  not qualified on the cut off date.  Being ineligible to be considered for  appointment, it would have been a futile exercise to give him an opportunity  of being heard.  

       In Aligarh Muslim University and Others v. Mansoor Ali Khan  [(2000) 7 SCC 529], the law is stated in the following terms : "25. The useless formality theory, it must be noted, is an  exception. Apart from the class of cases of admitted or  indisputable facts leading only to one conclusion referred  to above, there has been considerable debate on the  application of that theory in other cases. The divergent  views expressed in regard to this theory have been  elaborately considered by this Court in M.C. Mehta  referred to above. This Court surveyed the views  expressed in various judgments in England by Lord Reid,  Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry,  J. and Straughton, L.J. etc. in various cases and also  views expressed by leading writers like Profs. Garner,  Craig, de Smith, Wade, D.H. Clark etc. Some of them  have said that orders passed in violation must always be  quashed for otherwise the court will be prejudging the  issue. Some others have said that there is no such  absolute rule and prejudice must be shown. Yet, some

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others have applied via media rules. We do not think it  necessary in this case to go deeper into these issues. In  the ultimate analysis, it may depend on the facts of a  particular case.

       In Karnataka State Road Transport Corporation and Another v. S.G.  Kotturappa and Another [(2005) 3 SCC 409], this Court held : "\005The question as to what extent, principles of natural  justice are required to be complied with would depend  upon the fact situation obtaining in each case. The  principles of natural justice cannot be applied in vacuum.  They cannot be put in any straitjacket formula. The  principles of natural justice are furthermore not required  to be complied with when it will lead to an empty  formality. What is needed for the employer in a case of  this nature is to apply the objective criteria for arriving at  the subjective satisfaction. If the criteria required for  arriving at an objective satisfaction stands fulfilled, the  principles of natural justice may not have to be complied  with, in view of the fact that the same stood complied  with before imposing punishments upon the respondents  on each occasion and, thus, the respondents, therefore,  could not have improved their stand even if a further  opportunity was given\005"  

       In Punjab National Bank and Others v. Manjeet Singh and Another  [(2006) 8 SCC 647], this Court opined : "\005The principles of natural justice were also not  required to be complied with as the same would have  been an empty formality. The court will not insist on  compliance with the principles of natural justice in view  of the binding nature of the award.  Their application  would be limited to a situation where the factual position  or legal implication arising thereunder is disputed and not  where it is not in dispute or cannot be disputed. If only  one conclusion is possible, a writ would not issue only  because there was a violation of the principle of natural  justice."

       In P.D. Agrawal v. State Bank of India and Others [(2006) 8   SCC 776], this Court observed :

"The Principles of natural justice cannot be put in  a straight jacket formula.  It must be seen in  circumstantial flexibility.   It has separate facets.  It has in  recent time also undergone a sea change."   

       It was further observed :

"Decision of this Court in S.L. Kapoor vs.  Jagmohan & Ors. [(1980) 4 SCC 379], whereupon Mr.  Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes  prejudice or the same should not be read "as it causes  difficulty of prejudice", cannot be said to be applicable in  the instant case.  The principles of natural justice, as  noticed hereinbefore, has undergone a sea change.  In  view of the decision of this Court in State Bank of  Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364]  and Rajendra Singh vs. State of M.P. [(1996) 5 SCC  460], the principle of law is that some real prejudice must  have been caused to the complainant.  The Court has  shifted from its earlier concept that even a small violation  shall result in the order being rendered a nullity.  To the  principal doctrine of audi alterem partem, a clear

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distinction has been laid down between the cases where  there was no hearing at all and the cases where there was  mere technical infringement of the principal.  The Court  applies the principles of natural justice having regard to  the fact situation obtaining in each case.  It is not applied  in a vacuum without reference to the relevant facts and  circumstances of the case.  It is no unruly horse.  It  cannot be put in a straightjacket formula.  [See Viveka  Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots.  (2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi  & Ors. JT 2006 (1) SC 19.  See also Mohd. Sartaj vs.  State of U.P. (2006) 1 SCALE 265.]"  

       The principles of equity in a case of this nature, in our opinion, will  have no role to play.  Sympathy, as is well-known, should not be misplaced.  

       In Maruti Udyog Ltd. v. Ram Lal & Others. [(2005) 2 SCC 638],  a  Division Bench of this Court, wherein one of us was a member, noticing  some decisions, observed :       "44. While construing a statute, sympathy has no role to  play. This Court cannot interpret the provisions of the said  Act ignoring the binding decisions of the Constitution  Bench of this Court only by way of sympathy to the  workmen concerned. 45. In A. Umarani v. Registrar, Coop. Societies this Court  rejected a similar contention upon noticing the following  judgments: (SCC pp. 131-32, paras 68-70) 68. In a case of this nature this Court should not even  exercise its jurisdiction under Article 142 of the  Constitution of India on misplaced sympathy. 69. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh it is  stated: (SCC p. 144, paras 36-37) 36. We have no doubt in our mind that sympathy or  sentiment by itself cannot be a ground for passing an order  in relation whereto the appellants miserably fail to  establish a legal right. It is further trite that despite an  extraordinary constitutional jurisdiction contained in  Article 142 of the Constitution of India, this Court  ordinarily would not pass an order which would be in  contravention of a statutory provision. 37. As early as in 1911, Farewell, L.J. in Latham v.  Richard Johnson & Nephew Ltd. observed: (All ER p. 123  E) We must be very careful not to allow our sympathy with  the infant plaintiff to affect our judgment. Sentiment is a  dangerous will o the wisp to take as a guide in the search  for legal principles.  70. Yet again, recently in Ramakrishna Kamat v. State of  Karnataka this Court rejected a similar plea for  regularisation of services stating: (SCC pp. 377-78, para 7) We repeatedly asked the learned counsel for the appellants  on what basis or foundation in law the appellants made  their claim for regularisation and under what rules their  recruitment was made so as to govern their service  conditions. They were not in a position to answer except  saying that the appellants have been working for quite  some time in various schools started pursuant to  resolutions passed by Zila Parishads in view of the  government orders and that their cases need to be  considered sympathetically. It is clear from the order of the  learned Single Judge and looking to the very directions  given, a very sympathetic view was taken. We do not find  it either just or proper to show any further sympathy in the  given facts and circumstances of the case. While being  sympathetic to the persons who come before the court the

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courts cannot at the same time be unsympathetic to the  large number of eligible persons waiting for a long time in  a long queue seeking employment."  

       It is not a case where appointment was irregular.  If an appointment is  irregular, the same can be regularized.  The court may not take serious note  of an irregularity within the meaning of the provisions of the Act.  But if an  appointment is illegal, it is non est in the eye of law, which renders the  appointment to be a nullity.

       We have noticed hereinbefore that in making appointment of the  appellant, the provisions of Articles 14 and 16 of the Constitution and  statutory rules were not  complied with.   The appointment, therefore, was  illegal and in that view of the matter, it would be wholly improper for us to  invoke our equity jurisdiction.

Mr. Shekhar is also not correct in contending that the University had  supported the case of the appellant.  It was categorically stated by the  University in its counter affidavit  that the writ petition being devoid of any  merit should be dismissed.  In any event, we have ourselves taken into  consideration the merit of the matter and in that view of the matter the stand  of the University either before the Visitor or in the writ proceedings initiated  by Respondent No. 4 is wholly irrelevant.  

       For the reasons aforementioned, we do not find any merit in this  appeal, which is dismissed.  However, in the facts and circumstances of the  case,  there shall be no order as to costs.